From the Desk of Harold Poole

Fake Tenthers Treat the Constitution Like Toilet Paper

Now that Republicans have control in Washington D.C., Democrats have moved to an opposition strategy, and some prominent members of the left have even started citing the Constitution and the 10th Amendment.

Don’t get me wrong. We welcome calls to limit federal power to the powers delegated to it in the Constitution.

However, it’s also important to point out that these fair-weather constitutionalists, and their counterparts on the right, should be treated as that, and nothing more. They can be helpful in opposing unconstitutional federal power when they’re in the minority. But when they’re back in power, they simply can’t be trusted.

Take Erwin Chemerinsky.

He’s a prominent liberal, and one of the most widely-cited legal scholars in the country.

Writing in the Washington Post last month, Chemerinsky and two co-authors cited both the 10th Amendment and the anti-commandeering doctrine in making the case that President Trump is not authorized to force states and cities to help the federal government enforce federal immigration law.

He wrote:

“This ignores the 10th Amendment, which the Supreme Court has repeatedly interpreted to prevent the federal government from “commandeering” state and local governments by requiring them to enforce federal mandates.”

However, when Barack Obama was President, Erwin was singing a completely different tune.

At that time, a number of state legislators were introducing bills, using the anti-commandeering doctrine, to withdraw support from warrantless, federal surveillance programs – including NSA spying.

Chemerinsky went so far as to claim that simply withdrawing support from a federal program – as he’s in favor of doing right now – is the same as attempting to “regulate the federal government.” As quoted in the Los Angeles Times:

“The question here is going to be to what extent is the state interfering with the achievement of the federal objective? To what extent is the state regulating the federal government’s activities?” he said. “However well-intentioned it is, most would be preempted by federal law…. The law is clear that states can’t regulate the federal government.”

Beyond simply twisting “withdrawing support” into “regulating,” he went even further, claiming the anti-commandeering doctrine shouldn’t even exist.

“The anti-commandeering principle interferes with these objectives and should have been overruled”

Chemerinsky is far from alone. In the coming years we should expect to see prominent people on the left holding up the 10th Amendment to advance their own goals. They’ll continue to ignore it on other issues, of course.

That’s how these establishment people treat the Constitution. They use it when they need to and throw it away when they’re done. Just like toilet paper.

But it’s not just people on the left.

Take, for example, former Texas Gov. Rick Perry.

When running for president in 2011-12, he wanted to get rid of the Department of Energy. Perry was never a good constitutionalist, but on this, he was right.

Now that he’s been tapped to lead the department he once said should be eliminated, he “regrets” wanting to abolish the department, and even considers it “vital.” This was a huge change that came about, according to Perry, after a few briefings.

As Chris Edwards noted in The Hill, Perry “capitulated to big government on all fronts” and it appears he “does not want to cut anything at DOE.” [emphasis added]

Just like Erwin Chemerinsky, now that the halls of power are controlled by another political party, Perry was happy to completely change his tune.

The Founders were quite concerned about this kind of situation. Many referred to it as the power of “factions,” warning about the dangers of one group or party controlling or dominating the government. James Madison prominently discussed this in Federalist #10. But he was far from alone.

“There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.”

In his famous Farewell Speech, George Washington gave a dire warning about factions:

“The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.”

This is why our work at the Tenth Amendment Center focuses on the Constitution and liberty instead of personalities or politicians.

The Constitution holds its legal meaning through the ages, and politicians generally change with the wind.

This all leads to our goal: The Constitution. Every issue, every time. No exceptions, no excuses.